The story of Duke Power Company and Chief Justice Warren Burger

Here’s the story behind a 40-year-old Supreme Court decision that I always look forward to discussing in my Employment Law and Employment Discrimination courses. I’m not sure that my students share the enthusiasm, but I think it carries some important lessons for us.

Duke Power Company’s hiring and promotion practices

Before the Civil Rights Act of 1964 outlawed racial discrimination, the Duke Power Company of North Carolina had an express policy of not allowing African Americans to work in any department but the one that paid the very lowest wages. When open discrimination became unlawful, Duke Power got more creative. This included requiring a high school diploma and passing scores on two aptitude tests for any applicant who wanted to be considered for higher paying jobs.

Duke Power could not defend the diploma requirement or the tests as accurate measures of one’s ability to perform the work of those better paid positions. However, these new requirements had the effect of excluding Southern blacks who applied for the higher-paying jobs at Duke Power, especially given significant existing educational inequities.

Discrimination case

This led to an employment discrimination claim that challenged Duke Power’s hiring policies, and the case went up to the U.S. Supreme Court. In Griggs v. Duke Power Co. (1971), the Court struck down the requirements. Here’s a short piece of Chief Justice Warren Burger’s opinion:

The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality.

A crystal ball?

Those unfamiliar with our Supreme Court Justices might read this passage and think that Warren Burger was a wild-eyed radical lefty. He was anything but that: Burger is widely regarded as a solid conservative.

His insights, I believe, were rooted in his own humble roots. Warren Burger did not grow up with a silver spoon. On a court stacked with graduates of elite law schools, he presented a law degree from the William Mitchell College of Law in Minnesota.

In that one paragraph, the Chief Justice smartly anticipated the craziness to come: High-stakes educational testing at multiple levels. The U.S. News & World Report rankings of colleges, universities, and graduate programs. Out-of-control anxieties over college admissions. Employer love affairs with graduates of elite universities. Higher and higher settings of the credential bar to enter professions and obtain opportunities.

Compare and contrast

This decision hardly rendered Justice Burger a liberal in conservative clothing. Nevertheless, it is a sign of how far the political pendulum has swung to the right that he likely would be seen as a moderate on today’s Supreme Court. Indeed, it would be hard to imagine extreme conservative Justices such as Samuel Alito, Antonin Scalia, and Clarence Thomas joining Burger in his Griggs opinion.

4 responses

  1. It has occasionally occurred to me that well-papered individuals must have a sponsor somewhere…it takes a lot of time and money as well as minimal outside responsibility to acquire “credentials”. And while the credentials are being amassed, the individual is clearly not as available for other pursuits, like gaining work experience and broad-based social skills. All the education in the world doesn’t make a person intelligent or capable, and learning doesn’t necessarily result in ability to think well. We have too long associated education with intelligence and capacity, where there are probably higher correlations with education and the social determinants of health…like income and social support.

  2. Awesome story and awesome comments. I COMPLETELY agree with Dr. Yamada. I am a solid conservative from my youth up. I’m not a radical Right Winger but I do agree with most all the things that the Conservative Platform stands on. BUT….nothing that I beleive is etched in stone. The world is full of gray. Extremes either way are usually wrong in some significant way. I stay away from them. Instead….I always, always filter all of my beliefs through the filter of my faith. I find that the “faith filter” does away with MUCH confusion…double speak and plain ole wrong beliefs. For this reason I feel that Bullying (and Descrimination) is niether a Right or Left issue. It’s a right vs wrong issue. I will join any “lefty” in this fight. Proud to do so. Bullying….especially in Academia…is a completely insane carcinogen in our culture…sad as it is. It is my hope (and prayer) that this insanity be dealt with and erradicated from our culture. Both for our sakes…and those of our children.

  3. I think pressure for paper credentials is exactly what has led to the proliferation of unaccredited (or questionably accredited) for-profit education institutions (using the word “education” in its loosest sense). Unfortunately, I think most employers, even some in mainstream higher education, no longer look at the quality and reputation of the source of the diploma, but see all paper credentials as equivalent. I do not mean here that state universities are in any way inferior to Ivy League and prestigious private universities. I mean that employers seem not to distinguish between for-profit diploma mills and the accomplishments signified by a diploma from a reputable, accredited institution.

    Unfortunately, as well, some universities have lowered their academic requirements to the point that a diploma, even from what were once considered reputable schools, have little meaning and do not distinguish between those who accomplished the goals of higher education and those who did not. I know individuals with bachelor’s, master’s, and even doctorates who seem to not have the writing, math, or critical thinking abilities that we should expect of high school graduates. This certainly muddies the waters when trying to hire for a position that legitimately requires those skills.

    I agree, employers must not use academic credentials as a barrier to employment for which those accomplishments are not bona fide requirements. We now require practitioners of trades that should be and are best learned on the job to have academic and professional degrees. Unfortunately, this makes occupations for which credentials are not required somehow seem undesirable and, as a result, we have a shortage of individuals in skilled trades. It is a convoluted situation. People are led to believe that they are not worthy unless they have a college degree, so we created degrees where they do not need to exist. As a result, we have changed the meaning of having a college degree so that we cannot rely on the credential as representing an agreed-upon set of competencies. At the same time, people avoid vocations that do not require a degree, feeling that they are somehow inferior for not having a degree.

    But, to balance Dr. Yamada’s argument here, we also have to address the expectation of entitlement. I teach aspiring health care providers in higher education. It is amazing that students often see it as their “right” to receive a diploma, no matter how substandard their performance, rather than seeing that the only entitlement should be for the public to expect adequate health care. There are some legitimate uses of credentialing and certification and we must ensure that we protect their integrity.

  4. Thank you for these comments that leave my head spinning, but in a good way.

    Lots to say here, but I am struck by how the discussion today centers on college degrees and credentials, whereas the judicial decision I discussed centered on high school diplomas because during the time and location in question, less than a quarter of adult males had completed high school. So….similar issues but more paper piling on top.

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